Kodrea v. City of Kokomo. Ind.
| Decision Date | 22 June 2006 |
| Docket Number | No. 1:04-CV-1843-LJM-WTL.,1:04-CV-1843-LJM-WTL. |
| Citation | 458 F.Supp.2d 857 |
| Parties | Matthew G. KODREA, Plaintiff, v. CITY OF KOKOMO, INDIANA, and Matthew McKillip, individually and as Mayor of the City of Kokomo, Dan Smith, in his individual capacity, and Jack Dodd, in his individual capacity, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Lawren K. Mills, McMains Morse P.C., Mary Jane LaPointe, McMains LaPointe, Indianapolis, IN, for Plaintiff.
Andrew P. Wirick, Hume Smith Geddes Green & Simmons, Indianapolis, IN, for Defendants.
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on Defendants', City of Kokomo, Indiana (the "City"), Matthew McKillip (the "Mayor"), Dan Smith ("Smith"), and Jack Dodd ("Dodd") (all four defendants collectively, "Defendants"), Motion for Summary Judgment. In his Amended Complaint, Plaintiff, Matthew G. Kodrea ("Kodrea") raises claims under 42 U.S.C. § 1983 and Indiana Code § 36-1-8-8, a state "whistleblower" statute. More specifically, Kodrea contends that Defendants unlawfully terminated him in retaliation for his reports of two situations of alleged abuse within City government. As a result, Kodrea claims that Defendants violated his rights guaranteed by the First Amendment and the state statute. The parties have fully briefed the matter and it is now ripe for ruling.
For the reasons stated herein, Defendants' motion is GRANTED in part and DENIED in part.
Defendants requested in their reply brief that the Court strike several items that Kodrea submitted with his designated materials in opposition to the motion for summary judgment. Defendants also filed a Motion to Strike Affidavits that were submitted with Kodrea's sur-reply. The list of items that Defendants seek to strike are as follows: (1) letters from Alan Warner ("Warner") and Joe Hawkins ("Hawkins"), as well as their affidavits submitted with the sur-reply; (2) affidavits of Patsy Liali ("Liali") and David McKinney ("McKinney"); (3) the affidavit of James Trobaugh ("Trobaugh"), former Mayor of Kokomo; (4) Findings of Fact, Conclusions of Law, and Order entered by the Howard Circuit Court in the case styled Kern v. City of Kokomo, Cause No. 34C01-0507-PL-0632 ("Kern Order"); and (5) deposition exhibits labeled 12(B), 12(C), and 12(F)1 and the affidavit of Jesse A. Dixon ("Dixon"). The Court addresses each of these five groups of items in turn.
First, with respect to the Warner and Hawkins letters, Defendants argue that the letters contain inadmissible hearsay and that they not self-authenticating and contain no foundation for their consideration. Defendants also seek to strike the affidavits, which are duplicative of the information in the letters. As an initial matter, the Court notes that evidence offered during a summary judgment proceeding need only be admissible in content, not in form. See Juarez v. Menard, Inc., 366 F.3d 479, 484 n. 4 (7th Cir.2004). Kodrea identified the letters as ones he had received from Warner and Hawkins and attached them to his own affidavit. Kodrea Aff., ¶ 13. Warner and Hawkins' affidavits simply restate the same information contained in the letters and were offered in response to Defendants' authentication and foundation concerns, i.e., the form of the letters. To the extent the letters and affidavits contain hearsay, the Court will disregard such information; however, the Court declines to strike these materials in their entirety at this stage of the proceedings on merely technical grounds.
Next, the Court considers the affidavits of Liali and McKinney. Defendants first contend that the affidavits should be struck because they improperly contradict Kodrea's testimony. Defendants do not explain the basis for this objection, and they fail to make any citation to that portion or portions of Kodrea's testimony that they believe is contradictory. The Court declines to scour the record and make Defendants' argument for them. Defendants next raise a hearsay objection to paragraphs 4 through 7 of Liali's affidavit and paragraphs 6 through 8 of McKinney's affidavit. Portions of those paragraphs relate to things that Kodrea indicated were said or done by Smith. To the extent that these statements are offered to prove what Smith may have said, they are hearsay and will be disregarded. However, the Court declines to strike the affidavits in their entirety.
Third, Defendants seek to strike Trobaugh's affidavit on the basis that it is irrelevant under Federal Rule of Evidence ("FRE") 402. "Relevant evidence" is that evidence which has a tendency to make the existence of any fact of consequence to the determination of the action more or less probable. FRE 401. Kodrea argues in his surreply that the affidavit is relevant to demonstrate that Defendants should reasonably have known that employees could not be retaliated against for exercising their First Amendment right to speak out on matters of public concern. Thus, the affidavit is relevant to the issue of qualified immunity. The Court concludes that Trobaugh's affidavit has some relevance to that issue and therefore denies Defendants' request to strike Trobaugh's affidavit.
Fourth, Defendants seek to strike the Kern Order on the basis that it is irrelevant. Kodrea claims that the Kern Order is relevant to showing a municipal pattern and practice of violating First Amendment rights of City employees. The Court does have some concerns about the relevancy of the Kern Order. Though the parties do not discuss it in detail, Kern (unlike Kodrea) presumably was a merit-based employee and decisions regarding his employment fell under a merit-based system. Further, it appears that Kern vocalized his particular concerns directly to the public via the media. Based on these distinctions, the probative value of the Kern Order is slight, and when considering the potential prejudice under FRE 403 the Kern Order might well be excluded. The Court is hesitant, however, to strike the Kern Order prematurely at this stage of the proceedings. In any event, the Court concludes that the Kern Order is not necessary for disposition of Defendants' Motion for Summary Judgment and need not even be considered.
Finally, Defendants seek to strike deposition exhibits 12(B), 12(C), and 12(F) and the Dixon affidavit. Kodrea identified the deposition exhibits in his own affidavit and attached the Dixon affidavit to his surreply. Kodrea Aff., ¶ 6; Surreply. The deposition exhibits contain various e-mails, letters, cards, a list of achievements and community activities, and newspaper articles about Kodrea's community involvement and work on behalf of the Parks Department. Deposition exhibit 12(F) in particular appears to be a letter that Dixon wrote and the information contained therein is duplicative of that in the Dixon affidavit. Defendants's arguments regarding the deposition exhibits are broad and do not specifically discuss each particular document of the numerous documents submitted, but they seek to strike the deposition exhibits on the basis of inadmissible hearsay and improper character evidence under FRE 404. Defendants' Motion to Strike seeks to exclude the Dixon affidavit pursuant to Local Rule 56.1(d).
With respect to the deposition exhibits, the Court finds that the newspaper articles, to the extent that they are being offered for the truth of the matters asserted therein, are inadmissible hearsay and cannot be relied upon for summary judgment proceedings. See Chi. Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 654 (7th Cir.2001); Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.1997). To the extent that the newspaper articles discuss Kodrea's community involvement, they are also irrelevant and will be struck. Likewise, the items that relate to Kodrea's character and go beyond his capacity for truthfulness are improper character evidence under FRE 404 and are inadmissible. The Court will further disregard as irrelevant the unsigned note about child labor laws, Kodrea's list of community activities that are unrelated to his job, and various recommendation letters from the fire chief, Delphi supervisor, Howard County Sheriff, and a City councilman, all which appear to pre-date the beginning of Kodrea's employment with the Parks Department. However, any remaining items that relate to Kodrea's work performance or suggest the level of involvement by each individual defendant in the employment actions against Kodrea will be considered for the limited purposes of refuting Defendants' evidence to the contrary. Finally, with respect to deposition exhibit 12(F) and the Dixon affidavit, the Court declines to strike those matters for the same reasons discussed above for the Warner and Hawkins items.
Kodrea was hired as the recreational programmer for the City's Parks Department on July 28, 2003. Kodrea Dep. at 47. Although he had some sports-related experience from participation in athletics during high school and college, Kodrea did not have any particular work experience as a recreational programmer. Kodrea Dep. at 10, 28-29. Kodrea's immediate supervisor was Smith, Superintendent of the Parks Department. Kodrea Dep. at 47. Smith was supervised by the Mayor. Kodrea Dep. at 47. Dodd was Director of Human Resources. Dodd Dep. at 12-13.
As a new employee, Kodrea was supposed to receive a 30-day, a 60-day, and a 90-day evaluation. Smith Dep. at 67. Kodrea claims that he did not actually receive a 30-day evaluation, but he contends that Smith verbally informed him that he was doing fine. Kodrea Dep. at 108. Kodrea's subsequent 60-day and 90-day evaluations were favorable for the most part, as was his "end of the year" evaluation in January 2004. Kodrea Dep. at 107; Dep. Ex. 12(D).
Kodrea's job responsibilities included supervising and coordinating recreational programs and supervising...
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